OIG Approves Employed Physician Bonuses Based on Revenue from ASCs
A proposal to give physician employees a bonus based on the profits they generate from certain procedures performed at ambulatory surgery centers owned by their employer got a green light from the HHS Office of Inspector General (OIG) in an advisory opinion posted Oct. 13. The 30% bonus sailed through because it’s protected both by a statutory exception to the Anti-Kickback Statute (AKS) and a regulatory safe harbor that confers AKS immunity.
“There’s a real distinction between what you can do with your employees and what you can do with your independent contractors,” said attorney Eric Tower, with Blank Rome in Chicago.
“This is one of the few advisory opinions where the arrangement falls into a safe harbor and they even reference a statutory exception,” Tower said. In past advisory opinions, “OIG has taken the position you couldn’t rely on a statutory exception if there was a safe harbor.” Tower said he has been told by OIG officials that other statutory exceptions didn’t apply (e.g., for discounts) because the safe harbor was more detailed.
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"OIG Approves Employed Physician Bonuses Based on Revenue from ASCs," by Nina Youngstrom was published in The Report on Medicare Compliance (Volume 32, Number 38) on October 23, 2023.